Consultation on new plan to allow agency staff to cover strikers

Views are being sought on a controversial government proposal that would allow agency workers to cover for nurses and other staff who are taking strike action.

Public sector unions have criticised the fresh attempt to change the rules, with the Royal College of Nursing and others claiming its introduction would “erode people’s freedoms”.

The UK Department for Business and Trade (DBT) opened a consultation on Thursday on whether it should amend a prohibition on agency workers covering strike action.

“Agency workers should never be used to undermine their own colleagues, the freedoms we all enjoy and prop up bad legislation borne out of industrial failure”

Joanne Gailbraith-Marten

Under regulation 7 of the Conduct of Employment Agencies and Employment Business Regulations 2003 (known as the Conduct Regulations), it is illegal for an agency employer to supply workers for the purposes of covering the duties performed by a worker who is on strike, or taking action short of a strike.

The DBT’s consultation is investigating whether to repeal regulation 7, which would remove the blanket ban on agency workers doing this. It is, however, only the latest development involving the regulation.

This week’s move follows a High Court ruling in July that repealing agency worker strike laws was unlawful and that scuppered a previous attempt by the government to remove the regulation.

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For a period lasting from July 2022 to August 2023, regulation 7 was repealed by former business secretary Kwasi Kwarteng. It had previously been in place since 1976.

But since 10 August, in the wake of the court ruling, it has once again been unlawful for employers to engage agency workers to cover staff who are on strike.

The current consultation also follows a similar exercise, held back in 2015, on the same issue but the department chose not to proceed with a repeal at the time.

The DBT said the new one was designed to ensure it was “aware of all relevant views and evidence”, on top of that gathered eight years ago.

The consultation reads: “We are proposing to remove regulation 7 across all sectors. Employment businesses would be permitted to supply agency workers to hirers to cover strikes in any sector.

“This would include, for example, supplying agency workers to hirers in hospitality, retail or construction which are big existing markets for the recruitment sector.”

Crucially for ongoing industrial tensions, the blanket repeal of regulation 7 would include health.

It would, therefore, mean agencies supplying nurses, and other nursing staff, would be permitted to supply NHS organisations with workers when strikes happen.

The RCN has heavily criticised any change to regulation 7, airing worries that agency workers being able to cover shifts would lessen the impact of strikes.

In turn, this could give unions significantly less leverage when negotiating with the government for better pay offers in future.

RCN director of legal and member relations, Joanne Gailbraith-Marten, accused the government of “eroding people’s freedom”, and warned that the measures could harm industrial relations further.

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“Changing the law is a clear sign they’ve lost the argument,” said Ms Gailbraith-Marten.

Scenes from the first round of the RCN’s December 2022 pay strikes

“Agency workers should never be used to undermine their own colleagues, the freedoms we all enjoy and prop up bad legislation borne out of industrial failure.

“These measures curtail the freedom to strike – and come in the same week as the consultation on ‘minimum service levels’ in hospitals closed.

“At their core, all these measures are designed to prevent nursing staff from standing up for their patients.”

Ms Gailbraith-Marten drew a parallel between this proposal and the recent discussion about minimum service levels in the NHS during strikes, reiterating the RCN’s total opposition to that, too.

She continued: “Ministers blatantly misled nursing staff about the minimum service levels legislation from the start.

“The government said it wasn’t about nursing but it is now being used to specifically target nursing staff as they make up the majority of frontline staff and patient-care givers,” she said.

“We will continue to campaign against the principles of the Minimum Service Levels Act – and all other anti-strike measures like those announced [this week] – and campaign for the act to be repealed in its entirety.”

She added: “Ultimately, these attempts to curtail the freedoms of nursing staff will only exacerbate our dispute with a government that takes nursing staff for granted.

“This provocative approach to industrial relations makes further strike action by nurses more likely, not less likely.”

Meanwhile, Unison general secretary Christina McAnea said: “The government would be better off tackling the real issues facing the country, not wasting more valuable time picking fights with unions.

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“Ministers should concentrate on tackling the cost of living crisis, improving wages and fixing run-down public services,” she said.

In the consultation document, the DBT said the government considered that regulation 7 was a “significant interference” in the operations of private companies.

“The secretary of state [for business and trade]’s provisional view is that this interference is unnecessary and disproportionate,” the document said.

“It is already the case that employers can bring in replacement workers to provide cover if they employ them directly or contract out the service,” it said.

“There may be some employers who want to maintain basic elements of their business, who would benefit from the flexibility that repealing regulation 7 would offer but who lack the capacity or capability within the current legal framework to do so.”

The DBT said it acknowledged there were concerns from critics about the potential impact of a repeal of regulation 7 on industrial action.

“We do… recognise that the proposed change is likely to be strongly opposed by some who argue that it will have a ‘chilling effect’ on workers’ ability to strike,” it said.

“In our view the evidence does not currently support this. For example, during the time regulation 7 was repealed, there was a significant increase in the number of working days lost to industrial action which would suggest there had not been a material chilling effect.”

More information on how to contribute to the consultation can be found on the government website.

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